U.S. Supreme Court Justice Samuel Alito

by Dick Hall-Sizemore

Those commenters on this blog who are always decrying the dominance of liberal ideas and the quashing of conservative viewpoints in Virginia’s higher ed institutions need to broaden their horizon beyond the University of Virginia.  As reported by The Washington Post,  U.S. Supreme Court Justice Samuel Alito spoke yesterday to a crowd of law students and faculty at the Antonin Scalia Law School of George Mason University.  In reaction to a recently-leaked draft of his opinion that would overturn Roe v. Wade, there were, as would be expected, demonstrations from both sides of the abortion question outside the building in which the lecture was given.

Alito’s topic was not abortion, and he dodged questions on the subject following the lecture.  Rather, he talked about textualism, a method he favors, and how the late Justice Scalia’s advocacy of this approach had transformed the court’s methods of reviewing federal laws.  This is an important subject and one over which there is considerable debate.  The point here is that Virginia law students were being exposed to the conservative perspective.

These sorts of lectures are scheduled well in advance.  Had it not been for the leaked draft opinion, I suspect that this event would have taken place with little public notice.  Such is the diversity in Virginia higher education circles.

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30 responses to “Diverse Opinions in Higher Ed”

  1. f/k/a_tmtfairfax Avatar


    Can you check the “debate” link? I got a malware block on two browsers? Thx.


    1. Dick Hall-Sizemore Avatar
      Dick Hall-Sizemore

      It does OK with me. The site is “Dorf on Law”. My browser is Firefox.

      1. f/k/a_tmtfairfax Avatar

        I’ll try that. Thx.

        It worked.

        One should turn to secondary sources, e.g., legislative history, only when the words themselves are not clear. I learned that as a 1L when we studied Professor Llewelyn’s Canons of Statutory Construction. My professor was Dean Carl Auerbach, whom Hubert Humphrey would have appointed as Chief Justice of SCOTUS had the Vice President won the 1968 election. The Dean was certainly not like Justice Scalia.

        I have turned to legislative history many times in my career but only when the language at issue was ambiguous. But too many lawyers and judges jump before it is appropriate simply because they don’t like the law as adopted.

        1. Dick Hall-Sizemore Avatar
          Dick Hall-Sizemore

          I agree that the words rule when they are clear. Unfortunately, they are not always clear or some circumstance has arisen that that is not entirely within the law as written.

          The irony is that, in his talk at GMU, Alito took issue with his conservative colleagues who joined the “liberals” on the court to rule that federal discrimination law protected gay and transexual workers. He argued that the Congress could not have intended for “sex” to include those categories!

          1. LarrytheG Avatar

            So part of it seems to be what the founding fathers WOULD HAVE THOUGHT? But at least some of the debate is that is they said nothing about something – then it can be what ANY founding father thought or a majority or???

          2. f/k/a_tmtfairfax Avatar

            The problem that arises if one does not look at the original language and context but rather, to a point at some later time, is to be intellectually honest, one must debate at what other point in time? And who gets to pick?

            Let’s assume arguendo that it is appropriate to look beyond the original intent. Under that assumption, one can make an argument that Justice Douglas’ emanations and penumbras in 1965’s Griswold was correct. But if the Founders’ intent cannot be “built into the interpretation of the Constitution,” neither can Douglas’. Alito or any other justice is free to pick her or his view at any time.

            Under this logic, just like one legislative body cannot bind its successors, neither can one session of SCOTUS bind the next session. And stare decisis is tossed out the window. Our courts would no more need to follow any precedent than a civil law court would. (I did study Civil Law under the late, great professor Bruno Greene.)

            What I find telling about the almost across-the-board intellectual dishonesty from the left is the failure to discuss Douglas’ reasoning in Griswold. The old saw goes, “If the facts are against you, cite the law. If the law is against you, cite the facts. If both the facts and the law are against you, pound the table and demand justice.” I assume no one can truly justify Douglas’ legal analysis.

            Similarly, the left fails to address the issue of why Douglas’ emanations and penumbras protect abortion and gay marriage, but not plural marriage. A good lawyer should be able to construct an argument and not just ignore the inconsistency.

            The fault lies 100% with Congress. It’s had 57 years since Griswold and about 50 years since Roe to address these personal and privacy issues by statute. Darn near every other nation has done this. But we stick with our emanations and penumbras. Congress simply doesn’t want to move beyond the extremes and is gutless. No one for Profiles in Courage, Volume 2.

  2. dick dyas Avatar
    dick dyas

    Old Sam had guts going into GMU.

    1. Cathis398 Avatar

      it’s a good point. a right-wing justice really needs a backbone to speak at the Antonin Scalia Law School, named after one of the most left-wing social justice warriors this side of Karl Marx

    2. Dick Hall-Sizemore Avatar
      Dick Hall-Sizemore

      Actually, he did not “go into GMU”. He was at the Supreme Court building and the lecture was delivered by closed circuit.

      1. Nancy Naive Avatar
        Nancy Naive

        Well, it still took guts to click an icon titled “FaceTime”, especially with a face only a mother could love.

  3. Matt Adams Avatar
    Matt Adams

    “Alito’s topic was not abortion and he dodged questions on the subject following the lecture.”

    It would be improper for the Justice to comment on a pending Court Decision, just as it would be improper for a potential Justice to comment during confirmation how they would rule (the latter being instituted by POTUS Biden when he was a Senator and further stated by the Late Justice Ginsburg during her confirmation).

    I have to say that without discussing the minutiae of how the VA Government operates, your posts are nothing more than partisan Whataboutism.

  4. James McCarthy Avatar
    James McCarthy

    Following well-coached testimony at their confirmation hearings about the role of precedent, the majority writing in the leaked opinion were clearly not disturbed by overturning precedent. Yet, the judicial authority upon which this majority has relied derives from Marbury v Madison’s (1803) establishment of judicial review. Oddly, there is no reference or text in the Constitution upon which these new “textualists” now rely for the authority to overturn precedent without jeopardizing Marbury. This is the result of those bound by ideology in judicial decision making. Hopefully, the GMU students remain open to a fuller appreciation of jurisprudence than mere word definitions.

    1. Matt Adams Avatar
      Matt Adams

      Stare decisis isn’t absolute, any junior Lawyer should know that.

      1. f/k/a_tmtfairfax Avatar

        U.S. v. Darby Lumber Co. (1941), reversing Hammer v. Dagenhart (1918). And Hammer didn’t even involve emanations and penumbras. Rather, the Court appears to have seen the wisdom of Justice Holmes 1918 dissent.

        1. Matt Adams Avatar
          Matt Adams

          Roe is an example of why Legislating from the Bench is bad practice. Beyond that it was a poorly reasoned decision by several Legal minds to include Former Justice Ginsburg.

          It’s been 50 years, in that time they should have codified Roe. Which would make all of this nonsense, superfluous. The problem being, a specific group would lose a money a making issue and they would be forced to adhere to the restrictions set forth in the Law. While I myself would not wish to be a party to abortion I will not condemn or question others motives as long as they adhere to simple tenets (which ironically were laid out in Roe, but ultimate get ignored).

          1) Viability 24 weeks is the cutoff for abortion for no reason except in the case of rape, insect and or the health of the mother
          2) Insurance cannot cover it, as it’s a pulled resource you can’t violate someone’s 1st Amendment rights
          3) The Federal Government cannot pay for it, which against aligns with 1st Amendment protections.
          4) Clinics and providers should have privilege’s as near by Hospitals in case of emergency
          5) If the provider violates the 1st or 4 tenets, they are charged as accessory to murder with the parents being charged with murder.

        2. James McCarthy Avatar
          James McCarthy

          Holmes’s dissent rested upon his interpretation of the commerce clause and recognition that civilized nations had an interest in regulating child labor. Both elements are common judicial lines of inquiry. While some are of the opinion that precedent is not absolute, they fail to appreciate what importance to attach to it. “Separate but equal” as a precedent was deemed to yield to contemporary beliefs concerning race in addition to being inherently inconsistent.

          1. f/k/a_tmtfairfax Avatar

            People who don’t like a result argue that a case should be overruled. Those who like it argue for following precedent. Needless to say, the actual law is more complex as you know.

            I read one moron’s op-ed who argued courts should not interfere with the decisions of elected officials. But that ignores the fact that Griswold, Roe and Obergefell all involved a court interfering with decisions of elected officials. I sure hope this bozo is a lawyer.

  5. Nancy Naive Avatar
    Nancy Naive

    Textualism: “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; ”

    Okay, you can torture ’em, but then ya gotta let ’em go since a trial is double jeopardy.

  6. DJRippert Avatar

    Dick – you make aa decent point but … is this a case of a conservative law school allowing a conservative to speak? Would UVa Law School have allowed the same? Would GMU invite Justice Sotomayor?

    It seems to me that Alito speaking at GMU’s School of Law proves there are conservative law schools to go along with liberal law schools. Whether either allows open discourse – I don’t know.

    1. Dick Hall-Sizemore Avatar
      Dick Hall-Sizemore

      You are correct. It is not really a surprise that GMU would have Alito speaking at its law school. I was just reacting to broad complaints by Jim and others that students in Virginia’s public institutions of higher education are being immersed in liberalism and not exposed to conservative ideas and speakers. Obviously, that is not universally the case.

      Would UVa law school invite Alito to discuss textualism with its students and faculty? It should. The question and answer session could be quite lively.

  7. walter smith Avatar
    walter smith

    Mason Law is one of the top 10 most conservative law schools. #4 last if I remember correctly. As such, Mason was in a years long struggle with the ABA over reverse discrimination requirements to be accredited. Not a coincidence…
    UVA could behave itself for a controlled opposition Republican like Mike Pence…but I bet it couldn’t for a Steve Bannon or a MTG or Gaetz or Jim Jordan.
    All the accrediting agencies need reform.

    1. LarrytheG Avatar

      Can you name any Conservative higher ed that has invited these folks? Liberty? Reagent? Oral Roberts?

      1. walter smith Avatar
        walter smith

        This is “A” ranking…
        Don’t know how accurate I would classify it, but I haven’t studied this
        I would say Mason might be the best combination of conservative and ABA ranking…
        I’m sure Liberty and Regent get killed by the “neutral” accrediting judges for their religious ties.
        Ave Maria Law of Law – Florida
        Brigham Young University J. Reuben Clark Law School – Provo, Utah
        George Mason University Antonin Scalia Law School – Arlington, Virginia
        Faulkner University’s Thomas Goode Jones Law School – Montgomery, Alabama
        Texas Tech University School of Law – Lubbock, Texas
        University of Alabama School of Law – Tuscaloosa, Alabama
        Louisiana State University M. Hebert Law Center – Baton Rouge, Louisiana
        Mississippi College School of Law – Jackson, Mississippi
        The University of Idaho College of Law – Moscow, Idaho
        University of Mississippi Law Center – Mississippi

        1. LarrytheG Avatar

          good list. Do these Colleges invite both Conservative and Liberal speakers?

          1. walter smith Avatar
            walter smith

            These are law schools. And I don’t know. But I do know UVA is a public university and is overwhelmingly one sided…

          2. LarrytheG Avatar

            perhaps the argument with respect to public universities would be stronger if it can be shown that private conservative universities are diverse in their speaker invites and that becomes the standard to meet for all universities including public?

          3. walter smith Avatar
            walter smith

            Larry – perhaps the argument is already incredibly strong if you would actually look. I have been laser focused on UVA for a year now and the rot is deep and everywhere.
            I don’t need to show others who excel because all uniformly suck.
            It is hardly a badge of honor that private W&L had political contributions “only” 85% to Dems while UVA and all the publics were 93% and up.
            It is a disgrace that UVA, sitting on over $14 billion, wouldn’t offer a penny for Mike Pence, but has no problem bringing in all sorts of other luminaries. It’s who they print. It’s who they interview. It’s what is news in UVA Today. It’s that no one, not one, could break away and admit that Emma Weyant is the NCAA champ and not the guy with the male appendage still and enough testosterone that all the real women would be considered doping. It’s that no one, not one, questioned the Covid response. No civil rights lawyer. No economist. No doctor. Did you know 97% vaccinated UVA has over 1000 more cases in Spring 2022 over Spring 2021?
            Any healthy “school” would be able to have real, substantive, back and forth. Silence. To quote the Lefties, silence is violence…

          4. LarrytheG Avatar

            Yep – but are you expecting more from UVA than say other institutions, especially those that might, if they actually do better, show up UVA for not being as good?

            UVA did not suddenly become this way. They’ve been this way for decades, right?

            You conservatives have your emphasis on the wrong things IMHO. Focus on the schools that DO what you want and make that the standard AND the places where Conservatives want to go – instead.

            Let competition work.

            Ya’ll are so bound up over this that it’s simply not productive, it’s just plain old hate and discontent …. not much else.

          5. walter smith Avatar
            walter smith

            Larry – come on. It is not hate. It is disgust with betrayal and dishonesty.
            UVA was established by Jefferson to pursue truth wherever it may lead. Ryan et al are paid ridiculous amounts of money and have control over a huge amount of money. UVA gave $100 million to the Woodson institute at UVA, which teaches that Jefferson is the father of all 6 of Sally Hemings’ children. The official position of the UVA Guides is TJ is the father. This is known not to be true. Yet many arms of UVA repeat it. They also fail to mention in his first draft of the Declaration his slavery charge against George III or his efforts to end slavery, besides ignoring his genius and all other things. He is attacked by Liliputian midgets.
            When I went to UVA, the faculty was likely to the Left, but they kept it out of class. They didn’t require it, and you could speak and take positions contrary to the professor without fear. Now you are required to take positions – which, in my opinion, and backed by real life observations, are counter-productive.
            So why not point to some mythical school somewhere doing it right? Other than perhaps Hillsdale, can you name one?

  8. Eric the half a troll Avatar
    Eric the half a troll

    Wait… there were pro-life demonstrators outside the building where Alito was speaking…? Surely the Conservatives here are outraged at their blatant attempt to influence his decision in the pending abortion case…. right….???? 🦗🦗

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